Something old . . . something new (but nothing borrowed or blue)
Updated: Feb 15
The Court of Appeals released two new published opinions today . . . sort of. One of those opinions was from a rehearing in Osman v. Commonwealth. I reported on the original panel opinion back in November and the then commented on the somewhat surprising grant of a rehearing by the panel. Today’s opinion reaches the same conclusion as it did last year, but with a much longer explanation of why Osman’s violent abduction of his own child was not properly prosecuted as a felony. I suspect the Commonwealth will now seek a rehearing en banc or a review by the Supreme Court of Virginia because this result does seem counterintuitive. However, the problem is not with the Court’s reasoning (Judge Huff, joined by Judges Raphael and Lorish), but with the statute that distinguishes between stranger and parental abductions. While the General Assembly may not have intended for parents to get a pass on felony charges where violence was used in physically taking the child from the other parent, this is an issue for the legislature, not the courts, to fix.
The new opinion for the day is Theodore Theologis v. Mark Weiler, and for regular readers of this space it will seem a little like déjà vu all over again as the case involves members of a home owners association. In last week’s summary of Karey Burkholder and Douglas Thompson, Jr. v. Palisades Park Owners Association, Inc., I discussed in an aside the common occurrence of disputes in these “mini-quasi-governments.” Today, we get an opinion from the same panel (Judge Athey, joined by Judges Raphael and Chaney) which split 2-1in reversing in the Palisades Park opinion, but are unanimous in affirming Theologis. The issue is whether statements made by some members of the association were defamatory against Mr. Theologis. The circuit court found that they did not have the necessary defamatory sting and sustained the defendants’ demurrer.
Theologis was the president of the association, but his service was not appreciated by some two-dozen property owners who petitioned for his removal. Four of those opposed to Theologis continuing as president sent a letter to the other property owners that listed various grievances about his performance as an officer and director. It said, for instance, that Theologis had “made repeated efforts to impose far more restrictive policies than provided for in the Covenants & By-Laws” and that he had “usurp[ed] the authority granted to the Board as a whole via the Covenant & By-Laws.” However, there were not enough votes to remove Theologis at the meeting at which the issue was taken up.
Before the next meeting, one of the letter’s signatories made a social media post which read, “Theologis is capricious in his enforcement of [HOA] policy (even as he has broken our HOA bylaws).” The post added that Theologis “should be leaving the board at that date [of the next meeting] and you should have more reasonable people on the review board.”
I will not belabor the point, but I cannot help but wonder just how thin Theologis’ skin is that he thought these mild statements were defamatory and damaged his business reputation. The Court obviously wondered that too, and affirmed the circuit court's sustaining of the demurrer.
There is one “practice point” to be gleaned from this opinion. Theologis asked the Court to remand the case to allow him to amend his pleading even if it found no error in the sustaining of the demurrer, but the Court notes that Theologis never asked for that relief in the trial court, so he can’t get it on appeal.